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APPENDIX A 

SUPREME COURT OF FLORIDA 

NOS. SC00-2346, SC00-2348 & SC00-2349 

PALM BEACH COUNTY CANVASSING BOARD, 

Petitioner, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Respondents. 

VOLUSIA COUNTY CANVASSING BOARD, ET AL., 

Appellants, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Appellees. 

FLORIDA DEMOCRATIC PARTY, 

Appellant, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Appellees. 

[November 21, 2000] 
PER CURIAM. 

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We have for review two related trial court orders 
appealed to the First District Court of Appeal, which 
certified the orders to be of great public importance 
requiring immediate resolution by this Court (Case 
Numbers SC00-2348 and SC00-2349). We have 
jurisdiction under article V, section 3(b)(5) of the 
Florida Constitution. For the reasons set forth in this 
opinion, we reverse the orders of the trial court.1 

I. FACTS 

A. The Election 

On Tuesday, November 7, 2000, the State of 
Florida, along with the rest of the United States, 
conducted a general election for the President of the 
United States. The Division of Elections (“Division”) 
reported on Wednesday, November 8, that George W. 
Bush, the Republican candidate, had received 2,909,135 
votes, and Albert Gore Jr., the Democratic candidate, 
had received 2,907,351 votes. Because the overall 
difference in the total votes cast for each candidate was 
less than one-half of one percent of the total votes cast 
for that office (i.e., the difference was 1,784 votes), an 
automatic recount was conducted pursuant to section 

1 The Palm Beach County Canvassing Board has filed in this 
Court an “Emergency Petition for Extraordinary Writ” against 
Secretary of State Katherine Harris and others (Case Number 
SC00-2346). We have examined our jurisdiction under article V, 
section 3(b)(8) of the Florida Constitution. However, because the 
issue raised by that separate petition can be disposed of in our 
pending case and because we have previously stated in our order of 
November 16, 2000, that there was “no legal impediment” to the 
manual recounts continuing, we deem it unnecessary to determine 
if we have a separate basis of jurisdiction for entertaining the writ. 
Accordingly, by separate order we dismiss the petition. 

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102.141(4), Florida Statutes.2 The recount resulted in a 
substantially reduced figure for the overall difference 
between the two candidates. 

In light of the closeness of the election, the Florida 
Democratic Executive Committee on Thursday, 
November 9, requested that manual recounts be 
conducted in Broward, Palm Beach, and Volusia 
Counties pursuant to section 102.166, Florida Statutes 
(2000).3 Pursuant to section 102.166(4)(d), the county 
canvassing boards of these counties conducted a sample 
manual recount of at least one percent of the ballots cast. 
Initial manual recounts demonstrated the following: In 
Broward County, a recount of one percent of the ballots 
indicated a net increase of four votes for Gore; and in 
Palm Beach County, a recount of four sample precincts 
yielded a net increase of nineteen votes for Gore. Based 
on these recounts, several of the county canvassing 
boards determined that the manual recounts conducted 
indicated “an error in the vote tabulation which could 
affect the outcome of the election.” Based on this 
determination, several canvassing boards voted to 
conduct countywide manual recounts pursuant to section 
102.166(5)(c). 

2 Section 102.141(4), Florida Statutes (2000), provides in 
pertinent part: 

(4) If the returns for any office reflect that a candidate was 
defeated or eliminated by one-half of a percent or less of 
the votes cast for such office . . . the board responsible for 
certifying the results of the vote on such race or measure 
shall order a recount of the votes cast with respect to such 
office or measure. 

3 We have not discussed the events in Miami-Dade County 
because Miami-Dade is not a party nor has it sought to intervene in 
this case. 

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B. The Appeal Proceedings 

Concerned that the recounts would not be completed 
prior to the deadline set forth in section 102.111(1), 
Florida Statutes (2000), requiring that all county returns 
be certified by 5 p.m. on the seventh day after an 
election, the Palm Beach County Canvassing Board, 
pursuant to section 106.23, Florida Statutes (2000), 
sought an advisory opinion from the Division of 
Elections, requesting an interpretation of the deadline set 
forth in sections 102.111 and 102.112. The Division of 
Elections responded by issuing Advisory Opinion DE 
00-10, stating that absent unforseen circumstances, 
returns from the county must be received by 5 p.m. on 
the seventh day following the election in order to be 
included in the certification of the statewide results. 

Relying upon this advisory opinion, the Florida 
Secretary of State (the Secretary) issued a statement on 
Monday, November 13, 2000, that she would ignore 
returns of the manual recounts received by the Florida 
Department of State (the Department) after Tuesday, 
November 14, 2000, at 5:00 p.m. The Volusia County 
Canvassing Board (the Volusia Board) on Monday, 
November 13, 2000, filed suit in the Circuit Court of the 
Second Judicial Circuit in Leon County, Florida, seeking 
declaratory and injunctive relief, and the candidates and 
the Palm Beach County Canvassing Board (the Palm 
Beach Board), among others, were allowed to intervene. 
In its suit, the Volusia Board sought a declaratory 
judgment that it was not bound by the November 14, 
2000, deadline and also sought an injunction barring the 
Secretary from ignoring election returns submitted by 
the Volusia Board after that date. 

The trial court ruled on Tuesday, November 14, 
2000, that the deadline was mandatory but that the 
Volusia Board may amend its returns at a later date and 
that the Secretary, after “considering all attendant facts 
and circumstances,” may exercise her discretion in 

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determining whether to ignore the amended returns.4 
Later that day, the Volusia Board filed a notice of appeal 
of this ruling to the First District Court of Appeal, and 
the Palm Beach Board filed a notice of joinder in the 
appeal. 

Subsequent to the circuit court’s order, the Secretary 
announced that she was in receipt of certified returns 
(i.e., the returns resulting from the initial recount) from 

4 The trial court’s order reads in part: 

The County Canvassing Boards are, indeed, mandated to 
certify and file their returns with the Secretary of State by 
5:00 p.m. today, November 14, 2000. There is nothing, 
however, to prevent the County Canvassing Boards from 
filing with the Secretary of State further returns after 
completing a manual recount. It is then up to the Secretary 
of State, as the Chief Election Officer, to determine 
whether any such corrective or supplemental returns filed 
after 5:00 p.m. today, are to be ignored. Just as the County 
Canvassing Boards have the authority to exercise 
discretion in determining whether a manual recount should 
be done, the Secretary of State has the authority to exercise 
her discretion in reviewing that decision, considering all 
attendant facts and circumstances, and decide whether to 
include or to ignore the late filed returns in certifying the 
election results and declaring the winner. 

Just as the Secretary cannot decide ahead of time what late 
returns should or should not be ignored, it would not be 
proper for me to do so by injunction. I can lawfully direct 
the Secretary to properly exercise her discretion in making 
a decision on the returns, but I cannot enjoin the Secretary 
to make a particular decision, nor can I rewrite the Statute 
which, by its plain meaning, mandates the filing of returns 
by the Canvassing Boards by 5:00 p.m. on November 14, 
2000. 

McDermott v. Harris, No. 00-2700, unpublished order at 7 (Fla. 2d 
Cir. Ct. Nov. 14, 2000). 

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all counties in the State. The Secretary then instructed 
Florida’s Supervisors of Elections (Supervisors) that 
they must submit to her by 2 p.m., Wednesday, 
November 15, 2000, a written statement of “the facts 
and circumstances” justifying any belief on their part 
that they should be allowed to amend the certified 
returns previously filed. Four counties submitted their 
statements on time. After considering the reasons in 
light of specific criteria,5 the Secretary on Wednesday, 

5 The criteria considered by the Secretary are as follows: 

Facts & Circumstances Warranting Waiver of Statutory 
Deadline 

1. Where there is proof of voter fraud that affects the 
outcome of the election. In re Protest of Election Returns, 
707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Broward 
County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 
(Fla. 4th DCA 1992). 

2. Where there has been a substantial noncompliance 
with statutory election procedures, and reasonable doubt 
exists as to whether the certified results expressed the will 
of the voters. Beckstrom v. Volusia County Canvassing 
Bd., 707 So. 2d 720 (Fla. 1998). 

3. Where election officials have made a good faith 
effort to comply with the statutory deadline and are 
prevented from timely complying with their duties as a 
result of an act of God, or extenuating circumstances 
beyond their control, by way of example, an electrical 
power outage, a malfunction of the transmitting equip- 
ment, or a mechanical malfunction of the voting tabulation 
system. McDermott v. Harris, No. 00-2700 (Fla. 2d Cir. 
Ct. Nov. 14, 2000). 

Facts & Circumstances Not Warranting Waiver of 
Statutory Deadline 

1. Where there has been substantial compliance with 
statutory election procedures and the contested results 
relate to voter error, and there exists a reasonable 
expectation that the certified results expressed the will of 

[Footnote continued on next page] 

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November 15, 2000, rejected the reasons and again 
announced that she would not accept the amended 
returns but rather would rely on the earlier certified 
totals for the four counties. The Secretary further stated 
that after she received the certified returns of the 
overseas absentee ballots from each county, she would 
certify the results of the presidential election on 
Saturday, November 18, 2000. 

On Thursday, November 16, 2000, the Florida 
Democratic Party and Albert Gore filed a motion in 
Circuit Court of the Second Judicial Circuit in Leon 
County, Florida, seeking to compel the Secretary to 
accept amended returns. After conducting a hearing, the 
court denied relief in a brief order dated Friday, 
November 17, 2000.6 That day, both the Democratic 

[Footnote continued from previous page] 

the voters. Beckstrom. Volusia County Canvassing Bd., 
707 So. 2d 720 (Fla. 1998). 

2. Where there exists a ballot that may be confusing 
because of the alignment and location of the candidates’ 
names, but is otherwise in substantial compliance with the 
election laws. 

Nelson v. Robinson, 301 So. 2d 508, 511 
(Fla. 2d DCA 1974) (“[M]ere confusion does not amount 
to an impediment to the voters’ free choice if reasonable 
time and study will sort it out.”). 

3. Where there is nothing “more than a mere 
possibility that the outcome of the election would have 
been effected.” Broward County Canvassing Bd. v. 
Hogan, 607 So. 2d 508, 510 (Fla. 4th DCA 1992). 

Letter from Katherine Harris to Palm Beach County Canvassing 
Board (Nov. 15, 2000). 

6 The court’s order reads in part: 

On the limited evidence presented, it appears that the 
Secretary has exercised her reasoned judgment to 

[Footnote continued on next page] 

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Party and Gore appealed to the First District Court of 
Appeal, which consolidated the appeals with the Volusia 
Board’s appeal already pending there, and certified both 
of the underlying trial court orders to this Court based 
on the Court’s “pass-through” jurisdiction.7 By orders 
dated Friday, November 17, 2000, this Court accepted 
jurisdiction, set an expedited briefing schedule, and 
enjoined the Secretary and the Elections Canvassing 
Commission (Commission) from certifying the results of 
the presidential election until further order of this Court.8 

II. GUIDING PRINCIPLES 

Twenty-five years ago, this Court commented that 
the will of the people, not a hyper-technical reliance 
upon statutory provisions, should be our guiding 
principle in election cases: 

[Footnote continued from previous page] 

determine what relevant factors and criteria should be 
considered, applied them to the facts and circumstances 
pertinent to the individual counties involved, and made her 
decision. My order requires nothing more. 

McDermott v. Harris, No. 00-2700, unpublished order at 2 (Fla. 2d 
Cir. Ct. Nov. 17, 2000). 

7 See Art. V, § 3(b)(5), Fla. Const. (“[The Court may] review 
any order or judgment of a trial court certified by the district court 
of appeal in which an appeal is pending to be of great public 
importance . . . and certified to require immediate resolution by the 
supreme court.”). 

8 Subsequently, the Volusia Board moved to voluntarily dismiss 
its appeal in this Court. The Court granted the motion, but 
indicated that the case style would remain the same and that Gore 
and the Palm Beach Board “would continue as 
intervenors/appellants in this action.” 

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[T]he real parties in interest here, not in the 
legal sense but in realistic terms, are the voters. 
They are possessed of the ultimate interest and 
it is they whom we must give primary 
consideration. The contestants have direct 
interests certainly, but the office they seek is 
one of high public service and of upmost 
importance to the people, thus subordinating 
their interest to that of the people. Ours is a 
government of, by and for the people. Our 
federal and state constitutions guarantee the 
right of the people to take an active part in the 
process of that government, which for most of 
our citizens means participation via the election 
process. The right to vote is the right to 
participate; it is also the right to speak, but 
more importantly the right to be heard. We 
must tread carefully on that right or we risk the 
unnecessary and unjustified muting of the 
public voice. By refusing to recognize an 
otherwise valid exercise of the right of a citizen 
to vote for the sake of sacred, unyielding 
adherence to statutory scripture, we would in 
effect nullify that right. 

Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 
1975) (emphasis added). We consistently have adhered 
to the principle that the will of the people is the 
paramount consideration.9 Our goal today remains the 

9 See State ex rel.Chappell v. Martinez, 536 So. 2d 1007, 1009 
(Fla. 1988) (holding that disenfranchisement of voters is not proper 
where there has been substantial compliance with the election 
statute and the intent of voter can be ascertained); Beckstrom v. 
Volusia County Canvassing Bd., 707 So. 2d 720, 726 (Fla. 1998) 
(holding that courts should not frustrate will of voters if that will 
can be determined). 

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same as it was a quarter of a century ago, i.e., to reach 
the result that reflects the will of the voters, whatever 
that might be. This fundamental principle, and our 
traditional rules of statutory construction, guide our 
decision today. 

III. ISSUES 

The questions before this Court include the 
following: Under what circumstances may a Board 
authorize a countywide manual recount pursuant to 
section 102.166(5); must the Secretary and Commission 
accept such recounts when the returns are certified and 
submitted by the Board after the seven day deadline set 
forth in sections 102.111 and 102.112? 

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IV. LEGAL OPINION OF THE DIVISION 
OF ELECTIONS 

The first issue this Court must resolve is whether a 
County Board may conduct a countywide manual 
recount where it determines there is an error in vote 
tabulation that could affect the outcome of the election. 
Here, the Division issued opinion DE 00-13, which 
construed the language “error in vote tabulation” to 
exclude the situation where a discrepancy between the 
original machine return and sample manual recount is 
due to the manner in which a ballot has been marked or 
punched. 

Florida courts generally will defer to an agency’s 
interpretation of statutes and rules the agency is charged 

10 Neither party has raised as an issue on appeal the 
constitutionality of Florida’s election laws. 

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11 Florida courts, 
however, will not defer to an agency’s opinion that is 
contrary to law. 

12 We conclude that the Division’s 
advisory opinion regarding vote tabulation is contrary 
to law because it contravenes the plain meaning of 
section 102.166(5). 

Pursuant to section 102.166(4)(a), a candidate who 
appears on a ballot, a political committee that supports 
or opposes an issue that appears on a ballot, or a 
political party whose candidate’s name appeared on the 
ballot may file a written request with the County Board 
for a manual recount. This request must be filed with 
the Board before the Board certifies the election results 
or within seventy-two hours after the election, 
whichever occurs later. 

13 Upon filing the written request 
for a manual recount, the canvassing board may 
authorize a manual recount. 

14 The decision whether to 
conduct a manual recount is vested in the sound 
discretion of the Board. 

15 If the canvassing board 
decides to authorize the manual recount, the recount 
must include at least three precincts and at least one 
percent of the total votes cast for each candidate or 
issue, with the person who requested the recount 
choosing the precincts to be recounted. 

16 If the manual 

11 See Donato v. American Tel. & Tel.Co., 767 So. 2d 1146, 1153 
(Fla. 2000); Smith v. Crawford, 645 So. 2d 513, 521 (Fla. 1st DCA 
1994). 

12 See Donato, 767 So. 2d at 1153; Nikolits v. Nicosia, 682 So. 
2d 663, 666 (Fla. 4th DCA 1996). 

13 § 102.166(4)(b), Fla. Stat. (2000). 

14 § 102.166(4)(c), Fla. Stat. (2000). 

15 See Broward County Canvassing Bd. v. Hogan, 607 So. 2d 
508, 510 (Fla. 4th DCA 1992). 

16 See § 102.166(4)(d), Fla. Stat. (2000). 

with implementing and enforcing. 

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recount indicates an “error in the vote tabulation which 
could affect the outcome of the election,” the county 
canvassing board “shall”: 

(a) Correct the error and recount the remaining 
precincts with the vote tabulation system; 

(b) Request the Department of State to verify 
the tabulation software; or 

(c) Manually recount all ballots. 

§ 102.166(5)(a)-(c), Fla. Stat. (2000) (emphasis added). 

The issue in dispute here is the meaning of the 
phrase "error in the vote tabulation" found in section 
102.166(5). The Division opines that an “error in the 
vote tabulation” only means a counting error resulting 
from incorrect election parameters or an error in the vote 
tabulating software. We disagree. 

The plain language of section 102.166(5) refers to 
an error in the vote tabulation rather than the vote 
tabulation system. On its face, the statute does not 
include any words of limitation; rather, it provides a 
remedy for any type of mistake made in tabulating 
ballots. The Legislature has utilized the phrase "vote 
tabulation system" and "automatic tabulating 
equipment" in section 102.166 when it intended to refer 
to the voting system rather than the vote count. 
Equating "vote tabulation" with "vote tabulation system" 
obliterates the distinction created in section 102.166 by 
the Legislature. 

Sections 101.5614(5) and (6) also support the 
proposition that the "error in vote tabulation" 
encompasses more than a mere determination of whether 
the vote tabulation system is functioning. Section 
101.5614(5) provides that "[n]o vote shall be declared 
invalid or void if there is a clear indication of the intent 
of the voter as determined by the canvassing board." 

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Conversely, section 101.5614(6) provides that any vote 
in which the Board cannot discern the intent of the voter 
must be discarded. Taken together, these sections 
suggest that "error in the vote tabulation" includes 
errors in the failure of the voting machinery to read a 
ballot and not simply errors resulting from the voting 
machinery. 

Moreover, section 102.141(4), which outlines the 
Board's responsibility in the event of a recount, states 
that the Board "shall examine the counters on the 
machines or the tabulation of the ballots cast in each 
precinct in which the office or issue appeared on the 
ballot and determine whether the returns correctly reflect 
the votes cast." § 102.141, Fla. Stat. (2000) (emphasis 
added). Therefore, an “error in the vote tabulation” 
includes a discrepancy between the number of votes 
determined by a voter tabulation system and the number 
of voters determined by a manual count of a sampling of 
precincts pursuant to section 102.166(4). 

Although error cannot be completely eliminated in 
any tabulation of the ballots, our society has not yet 
gone so far as to place blind faith in machines. In 
almost all endeavors, including elections, humans 
routinely correct the errors of machines. For this very 
reason Florida law provides a human check on both the 
malfunction of tabulation equipment and error in failing 
to accurately count the ballots. Thus, we find that the 
Division’s opinion DE 00-13 regarding the ability of 
county canvassing boards to authorize a manual recount 
is contrary to the plain language of the statute. 

Having concluded that the county canvassing boards 
have the authority to order countywide manual recounts, 

14a 

17 must 
accept a return after the seven-day deadline set forth in 
sections 102.111 and 102.112 under the circumstances 
presented. 

V. THE APPLICABLE LAW 

The abiding principle governing all election law in 
Florida is set forth in article I, section 1, Florida 
Constitution: 

SECTION 1. Political power.–All political 
power is inherent in the people. The 
enunciation herein of certain rights shall not be 
construed to deny or impair others retained by 
the people. 

Art. I, § 1, Fla. Const. The constitution further provides 
that elections shall be regulated by law: 

SECTION 1. Regulation of elections.–All 
elections by the people shall be by direct and 
secret vote. General elections shall be 
determined by a plurality of votes cast. 
Registration and elections shall, and political 
party functions may, be regulated by law; 
however, the requirements for a candidate with 
no party affiliation or for a candidate of a minor 
party for placement of the candidate’s name on 

17 The Commission is composed of the Secretary of State, the 
Director of the Division of Elections, and the Governor. See § 
102.111, Fla. Stat. In this instance, Florida Governor Jeb Bush has 
removed himself from the Commission because his brother, Texas 
Governor George W. Bush, is the Republican candidate for 
President of the United States. Robert Crawford, Florida 
Commissioner on Agriculture, has been appointed to replace 
Florida Governor Jeb Bush. See § 102.111, Fla . Stat. 

we must now determine whether the Commission 

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the ballot shall be no greater than the 
requirements for a candidate of the party having 
the largest number of registered voters. 

Art. VI, § 1, Fla. Const. (emphasis added). 

The Florida Election Code (“Code”), contained in 
chapters 97–106, Florida Statutes (2000), sets forth 
specific criteria regulating elections. The Florida 
Secretary of State is the chief election officer of the state 
and is charged with general oversight of the election 
system. 

18 The Supervisor of Elections (“Supervisor”) in 
each county is an elected official 

19 and is charged with 
appointing two Election Boards for each precinct within 
the county prior to an election. 

20 Each Election Board is 
composed of inspectors and clerks, 

21 all of whom must 

22 and is charged with 
conducting the voting in the election, counting the 
votes, 

23 and certifying the results to the Supervisor 

24 by 

be residents of the county, 

25 The County 
Canvassing Board (“Canvassing Board” or “Board”), 
which is composed of the Supervisor, a county court 
judge, and the chair of the board of county 
commissioners, 

26 then canvasses the returns 

18 § 97.012, Fla. Stat. (2000). 

19 § 98.015, Fla. Stat. (2000). 

20 § 102.012(1), Fla. Stat. (2000). 

21 § 102.012(1), Fla. Stat. (2000). 

22 § 102.012(2), Fla. Stat. (2000). 

23 § 102.012(4), Fla. Stat. (2000). 

24 § 102.071, Fla. Stat. (2000). 

25 § 102.141(3), Fla. Stat. (2000). 

26 § 102.141(1), Fla. Stat. (2000). 

noon of the day following the election. 

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countywide, 

27 reviews the certificates, 

28 and transmits the 
returns for state and federal officers to the Florida 
Department of State (“Department”) by 5:00 p.m. of the 
seventh day following the election. 

29 No deadline is set 
for filing corrected, amended, or supplemental returns. 

The Elections Canvassing Commission (“Canvas- 
sing Commission” or “Commission”), which is composed 
of the Governor, the Secretary of State, and the Director 
of the Division of Elections, canvasses the returns 
statewide, determines and declares who has been elected 
for each office, and issues a certificate of election for 
each office as soon as the results are compiled. 

30 If any 
returns appear to be irregular or false and the 
Commission is unable to determine the true vote for a 
particular office, the Commission certifies that fact and 
does not include those returns in its canvass. 

31 In 
determining the true vote, the Commission has no 
authority to look beyond the county’s returns. 

32 A 
candidate or elector can “protest” the returns of an 
election as being erroneous by filing a protest with the 
appropriate County Canvassing Board. 

33 And finally, a 

27 § 102.141(2), Fla. Stat. (2000). 

28 § 102.141 (3), Fla. Stat. (2000). 

29 §§ 102.111–.112, Fla. Stat. (2000). 

30 §§ 102.111, .121, Fla. Stat. (2000). 

31 § 102.131, Fla. Stat. (2000) (“If any returns shall appear to be 
irregular or false so that the Elections Canvassing Commission is 
unable to determine the true vote for any office . . . the commission 
shall so certify and shall not include the returns in its 
determination, canvass, and declaration.”). 

32 § 102.131, Fla. Stat. (2000) (“The Elections Canvassing 
Commission in determining the true vote shall not have authority 
to look beyond the county returns.”). 

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candidate, elector, or taxpayer can “contest” the 
certification of election results by filing a post- 
certification action in circuit court within certain time 
limits 

34 and setting forth specific grounds. 

35 

VI. STATUTORY AMBIGUITY 

The provisions of the Code are ambiguous in two 
significant areas. First, the time frame for conducting a 
manual recount under section 102.166(4) is in conflict 
with the time frame for submitting county returns under 
sections 102.111 and 102.112. Second, the mandatory 
language in section 102.111 conflicts with the 
permissive language in 102.112. 

[Footnote continued from previous page] 

33 § 102.166, Fla. Stat. (2000). 

34 See § 102.168(2), Fla. Stat. (2000) (explaining that the action 
must be filed within ten days after the last Board certifies its 
returns or within five days after the last Board certifies its returns 
following a protest). 

35 The grounds for contesting an election are set forth in section 
102.168(3), Florida Statutes (2000): 

(a) Misconduct, fraud, or corruption . . . sufficient to 
change or place in doubt the result of the election. 
(b) Ineligibility of the successful candidate . . . . 

(c) Receipt of a number of illegal votes or rejection of a 
number of legal votes sufficient to change or place in 
doubt the result of the election. 
(d) Proof that any elector, election official or canvassing 
board member was given or offered a bribe . . . . 

(e) Any other cause or allegation which, if sustained, 
would show that a person other than the successful 
candidate was the person duly nominated or elected to the 
office in question. 

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A. The Recount Conflict 

Section 102.166(1) states that "any candidate for 
nomination or election, or any elector qualified to vote 
in the election related to such candidacy shall have the 
right to protest the returns of the election as being 
erroneous by filing with the appropriate canvassing 
board a sworn written protest." The time period for 
filing a protest is "prior to the time the canvassing board 
certifies the results for the office being protested or 
within 5 days after midnight of the date the election is 
held, whichever is later. 

Section 102.166(4)(a), the operative subsection in 
this case, further provides that, in addition to any 
protest, "any candidate whose name appeared on the 
ballot . . . or any political party whose candidates' names 
appeared on the ballot may file a written request with 
the county canvassing board for a manual recount" 
accompanied by the “reason that the manual recount is 
being requested.” Section 102.166(4)(b) further 
provides that the written request may be made prior to 
the time the Board certifies the returns or within 
seventy-two hours after the election, whichever occurs 
later: 

36 

36 As discussed in Siegel v. Lepore, 2000 WL 1687185 *6 (S.D. 
Fla. 2000): 

On its face, the manual recount provision does not limit 
candidates access to the ballot or interfere with voters’ 
right to associate or vote. Instead the manual recount 
provision is intended to safeguard the integrity and 
reliability of the electoral process by providing a structural 
means of detecting and correcting clerical or electronic 
tabulating errors in the counting of election ballots. While 
discretionary in its application, the provision is not wholly 
standardless. Rather, the central purpose of the scheme, as 

[Footnote continued on next page] 

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(4)(a) Any candidate whose name appeared on 
the ballot, any political committee that supports 
or opposes an issue which appeared on the 
ballot, or any political party whose candidates’ 
names appeared on the ballot may file a written 
request with the county canvassing board for a 
manual recount. The written request shall 
contain a statement of the reason the manual 
recount is being requested. 

(b) Such request must be filed with the 
canvassing board prior to the time the 
canvassing board certifies the results 
for the office being protested or within 
72 hours after midnight of the date the 
election was held, whichever occurs 
later. 

§ 102.166, Fla. Stat. (2000) (emphasis added). 

A Board “may” authorize a manual recount 

37 and 
such a recount must include at least three precincts and 

[Footnote continued from previous page] 

evidenced by its plain language, is to remedy ‘an error in 
the vote tabulation which could affect the outcome of the 
election.’ Fla. Stat. §102.166(5). In this pursuit, the 
provision strives to strengthen rather than dilute the right 
to vote by securing, as nearly as humanly possible, an 
accurate and true reflection of the will of the electorate. 
Notably, the four county canvassing boards [that were] 
challenged in this suit have reported various anomalies in 
the initial automated count and recount. The state manual 
recount provision therefore serves important governmental 
interests. 

37 The statute does not set forth any criteria for determining when 
a manual recount is appropriate. See § 102.166(4)(c), Fla. Stat. 

[Footnote continued on next page] 

20a 

at least one percent of the total votes cast for the 
candidate. 

38 The following procedure then applies: 

(5) If the manual recount indicates an error in 
the vote tabulation which could affect the 
outcome of the election, the county canvassing 
board shall: 

(a) Correct the error and recount the remaining 
precincts with the vote tabulation system; 

(b) Request the Department of State to verify 
the tabulation software; or 

(c) Manually recount all ballots. 

(6) Any manual recount shall be open to the 
public. 

(7) Procedures for a manual recount are as 
follows: 

(a) The county canvassing board shall appoint 
as many counting teams of at least two electors 
as is necessary to manually recount the ballots. 
A counting team must have, when possible, 
members of at least two political parties. A 
candidate involved in the race shall not be a 
member of the counting team. 

(b) If a counting team is unable to determine a 
voter’s intent in casting a ballot, the ballot shall 
be presented to the county canvassing board for 
it to determine the voter’s intent. 

[Footnote continued from previous page] 

(2000) (“The county canvassing board may authorize a manual 
recount.”). 

38 § 102.166(4)(d), Fla. Stat. (2000). 

21a 

§ 102.166, Fla. Stat. (2000). 

Under this scheme, a candidate can request a manual 
recount at any point prior to certification by the Board 
and such action can lead to a full recount of all the votes 
in the county. Although the Code sets no specific 
deadline by which a manual recount must be completed, 
logic dictates that the period of time required to 
complete a full manual recount may be substantial, 
particularly in a populous county, and may require 
several days. The protest provision thus conflicts with 
section 102.111 and 102.112, which state that the 
Boards “must” submit their returns to the Elections 
Canvassing Commission by 5:00 p.m. of the seventh day 
following the election or face penalties. For instance, if 
a party files a pre-certification protest on the sixth day 
following the election and requests a manual recount 
and the initial manual recount indicates that a full 
countywide recount is necessary, the recount procedure 
in most cases could not be completed by the deadline in 
sections 102.111 and 102.112, i.e., by 5:00 p.m. of the 
seventh day following the election. 

B. The “Shall” and “May” Conflict 

In addition to the conflict in the above statutes, 
sections 102.111 and 102.112 contain a dichotomy. 
Section 102.111, which sets forth general criteria 
governing the State Canvassing Commission, was 
enacted in 1951 as part of the Code and provides as 
follows: 

102.111 Elections Canvassing Commission.– 

(1) Immediately after certification of any 
election by the county canvassing board, the 
results shall be forwarded to the Department of 
State concerning the election of any federal or 
state officer. The Governor, the Secretary of 
State, and the Director of the Division of 

22a 

Elections shall be the Elections Canvassing 
Commission. The Elections Canvassing 
Commission shall, as soon as the official results 
are compiled from all counties, certify the 
returns of the election and determine and 
declare who has been elected for each office. In 
the event that any member of the Elections 
Canvassing Commission is unavailable to 
certify the returns of any election, such member 
shall be replaced by a substitute member of the 
Cabinet as determined by the Director of the 
Division of Elections. If the county returns are 
not received by the Department of State by 5 

p.m. of the seventh day following a n election, all 
missing counties shall be ignored, and the 
results shown by the returns on file shall be 
certified. 

§ 102.111, Fla. Stat. (2000) (emphasis added). 

The Legislature in 1989 revised chapter 102 to 
include section 102.112, which provides that returns not 
received after a certain date “may” be ignored and that 
members of the County Board “shall” be fined: 

102.112 Deadline for submission of county 
returns to the Department of State; penalties.– 

(1) The county canvassing board or a majority 
thereof shall file the county returns for the 
election of a federal or state officer with the 
Department of State immediately after the 
certification of the election results. Returns 
must be filed by 5 p.m. on the 7th day following 
the first primary and general election and by 3 

p.m. on the 3rd day following the second 
primary. If the returns are not received by the 
department by the time specified, such returns 
may be ignored and the results on file at that 
time may be certified by the department. 

23a 

(2) The department shall fine each board 
member $200 for each day such returns are late, 
the fine to be paid only from the board 
member’s personal funds. Such fines shall be 
deposited into the Election Campaign Financing 
Trust fund, created by s. 106.32. 

(3) Members of the county canvassing board 
may appeal such fines to the Florida Elections 
Commission, which shall adopt rules for such 
appeals. 

§ 102.112, Fla. Stat. (2000) (emphasis added). 

The above statutes conflict. Whereas section 
102.111 is mandatory, section 102.112 is permissive. 
While it is clear that the Boards must submit returns by 
5 p.m. of the seventh day following the election or face 
penalties, the circumstances under which penalties may 
be assessed are unclear. 

VII. LEGISLATIVE INTENT 

Legislative intent–as always–is the polestar that 
guides a court’s inquiry into the provisions of the 
Florida Election Code. 

39 Where the language of the 
Code is clear and amenable to a reasonable and logical 
interpretation, courts are without power to diverge from 
the intent of the Legislature as expressed in the plain 
language of the Code. 

40 As noted above, however, 
chapter 102 is unclear concerning both the time limits 

39 See, e.g., Florida Birth-Related Neurological Injury Compen- 
sation Ass’n v. Florida Div. of Admin. Hearings, 686 So. 2d 1349 
(Fla. 1997). 

40 See, e.g., Starr Tyme, Inc. v. Cohen, 659 So. 2d 1064 (Fla. 
1995). 

24a 

for submitting the results of a manual recount and the 
penalties that may be assessed by the Secretary. In light 
of this ambiguity, the Court must resort to traditional 
rules of statutory construction in an effort to determine 
legislative intent. 

41 

First, it is well-settled that where two statutory 
provisions are in conflict, the specific statute controls 
the general statute. 

42 In the present case, whereas section 
102.111 in its title and text addresses the general 
makeup and duties of the Elections Canvassing 
Commission, the statute only tangentially addresses the 
penalty for returns filed after the statutory date, noting 
that such returns “shall” be ignored by the Department. 
Section 102.112, on the other hand, directly addresses in 
its title and text both the “deadline” for submitting 
returns and the “penalties” for submitting returns after a 
certain date; the statute expressly states that such returns 
“may” be ignored and that dilatory Board members 
“shall” be fined. Based on the precision of the title and 
text, section 102.112 constitutes a specific penalty 
statute that defines both the deadline for filing returns 
and the penalties for filing returns thereafter and section 
102.111 constitutes a non-specific statute in this regard. 
The specific statute controls the non-specific statute. 

Second, it also is well-settled that when two statutes 
are in conflict, the more recently enacted statute controls 
the older statute. 

43 In the present case, the provision in 
section 102.111 stating that the Department “shall” 
ignore returns was enacted in 1951 as part of the Code. 

41 See, e.g., Capers v. State, 678 So. 2d 330 (Fla. 1996). 

42 See, e.g., State ex rel.Johnson v. Vizzini, 227 So. 2d 205 (Fla. 
1969). 

43 See, e.g., McKendry v. State, 641 So. 2d 45 (Fla. 1994). 

25a 

On the other hand, the penalty provision in section 
102.112 stating that the Department “may” ignore 
returns was enacted in 1989 as a revision to chapter 102. 
The more recently enacted provision may be viewed as 
the clearest and most recent expression of legislative 
intent. 

Third, a statutory provision will not be construed in 
such a way that it renders meaningless or absurd any 
other statutory provision. 

44 In the present case, section 
102.112 contains a detailed provision authorizing the 
assessment of fines against members of a dilatory 
County Canvassing Board. The fines are personal and 
substantial, i.e., $200 for each day the returns are not 
received. If, as the Secretary asserts, the Department 
were required to ignore all returns received after the 
statutory date, the fine provision wo uld be meaningless. 
For example, if a Board simply completed its count late 
and if the returns were going to be ignored in any event, 
what would be the point in submitting the returns? The 
Board would simply file no returns and avoid the fines. 
But, on the other hand, if the returns submitted after the 
statutory date would not be ignored, the Board would 
have good reason to submit the returns and accept the 
fines. The fines thus serve as an alternative penalty and 
are applicable only if the Department may count the 
returns. 

Fourth, related statutory provisions must be read as 
a cohesive whole. 

45 As stated in Forsythe v. Longboat 
Key Beach Erosion Control Dist., 604 So. 2d 452, 455 
(Fla. 1992), "all parts of a statute must be read together 
in order to achieve a consistent whole. Where possible, 

44 See, e.g., Amente v. Newman, 653 So. 2d 1030 (Fla. 1995). 

45 See, e.g., Sun Ins. Office, Ltd. v. Clay, 133 So. 2d 735 (Fla. 
1961). 

26a 

courts must give effect to all statutory provisions and 
construe related statutory provisions in harmony with 
another." In this regard we consider the provisions of 
section 102.166 and 102.168. 

Section 102.166 states that a candidate, political 
committee, or political party may request a manual 
recount any time before the County Canvassing Board 
certifies the results to the Department and, if the initial 
manual recount indicates a significant error, the Board 
“shall” conduct a countywide manual recount in certain 
cases. Thus, if a protest is filed on the sixth day 
following an election and a full manual recount is 
required, the Board, through no fault of its own, will be 
unable to submit its returns to the Department by 5:00 

p.m. on the seventh day following the election. In such 
a case, if the mandatory provision in section 102.111 
were given effect, the votes of the county would be 
ignored for the simple reason that the Board was 
following the dictates of a different section of the Code. 
The Legislature could not have intended to penalize 
County Canvassing Boards for following the dictates of 
the Code. 

And finally, when the Legislature enacted the Code 
in 1951, it envisioned that all votes cast during a 
particular election, including absentee ballots, would be 
submitted to the Department at one time and would be 
treated in a uniform fashion. Section 97.012(1) states 
that it is the Secretary’s responsibility to “[o]btain and 
maintain uniformity in the application, operation, and 
interpretation of the election laws.” Chapter 101 
provides that all votes, including absentee ballots, must 
be received by the Supervisor no later than 7 p.m. on the 
day of the election. Section 101.68(2)(d) expressly 
states that “[t]he votes on absentee ballots shall be 
included in the total vote of the county.” Chapter 102 
requires that the Board submit the returns by 5 p.m. on 
the seventh day following the election. 

27a 

The Legislature thus envisioned that when returns 
are submitted to the Department, the returns “shall” 
embrace all the votes in the county, including absentee 
ballots. This, of course, is not possible because our state 
statutory scheme has been superseded by federal law 
governing overseas voters; 

46 overseas ballots must be 
counted if received no later than ten days following the 
election (i.e., the ballots do not have to be received by 7 

p.m. of the day of the election, as provided by state 
law). 

47 In light of the fact that overseas ballots cannot be 
counted until after the seven day deadline has expired, 
the mandatory language in section 102.111 has been 
supplanted by the permissive language of section 
102.112. 

Further, although county returns must be received 
by 5 p.m. on the seventh day following an election, the 
"official results" that are to be compiled in order to 
certify the returns and declare who has been elected 
must be construed in pari materia with section 

46 According to the Secretary, this matter is governed by consent 
decree with the federal government. 

47 See Fla. Admin. Code R.1S-2.013 (1998), which provides in 
relevant part: 

(7) With respect to the presidential preference primary 
and the general election, any absentee ballot cast for a 
federal office by an overseas elector which is postmarked 
or signed and dated no later than the date of the Federal 
election shall be counted if received no later than 10 days 
from the date of the Federal election so long as such 
absentee ballot is otherwise proper. Overseas electors 
shall be informed by the supervisors of elections of the 
provisions of this rule, i.e., the ten day extension provision 
for the presidential preference primary and the general 
election, and the provision for voting for the second 
primary. 

28a 

101.5614(8), which specifies that "write-in, absentee 
and manually counted results shall constitute the official 
return of the election." (Emphasis added.) 

Under this statutory scheme, the County Canvassing 
Boards are required to submit their returns to the 
Department by 5 p.m. of the seventh day following the 
election. The statutes make no provision for exceptions 
following a manual recount. If a Board fails to meet the 
deadline, the Secretary is not required to ignore the 
county’s returns but rather is permitted to ignore the 
returns within the parameters of this statutory scheme. 
To determine the circumstances under which the 
Secretary may lawfully ignore returns filed pursuant to 
the provisions of section 102.166 for a manual recount , 
it is necessary to examine the interplay between our 
statutory and constitutional law at both the state and 
federal levels. 

VIII. THE RIGHT TO VOTE 

The text of our Florida Constitution begins with a 
Declaration of Rights, a series of rights so basic that the 
founders accorded them a place of special privilege. 

48 

The Court long ago noted the venerable role the 
Declaration plays in our tripartite system of government 
in Florida: 

It is significant that our Constitution thus 
commences by specifying those things which 
the state government must not do, before 
specifying certain things that it may do. These 
Declarations of Rights . . . have cost much, and 
breathe the spirit of that sturdy and self-reliant 
philosophy of individualism which underlies and 

48 Traylor v. State, 596 So. 2d 957, 963 (Fla. 1992). 

29a 

supports our entire system of government. No 
race of hothouse plants could ever have 
produced and compelled the recognition of such 
a stalwart set of basic principles, and no such 
race can preserve them. They say to arbitrary 
and autocratic power, from whatever official 
quarter it may advance to invade these vital 
rights of personal liberty and private property, 
“Thus far shalt thou come, but no farther.” 

State v. City of Stuart, 120 So. 335, 347 (Fla. 1929). 
Courts must attend with special vigilance whenever the 
Declaration of Rights is in issue. 

The right of suffrage is the preeminent right 
contained in the Declaration of Rights, for without this 
basic freedom all others would be diminished. The 
importance of this right was acknowledged by the 
authors of the Constitution, who placed it first in the 
Declaration. The very first words in the body of the 
constitution are as follows: 

SECTION 1. Political power.–All political 
power is inherent in the people. The 
enunciation herein of certain rights shall not be 
construed to deny or impair others retained by 
the people. 

Art. I., § 1, Fla. Const. (emphasis added). The framers 
thus began the constitution with a declaration that all 
political power inheres in the people and only they, the 
people, may decide how and when that power may be 
given up. 

49 

49 See Talbot D’Alemberte, Commentary, 25A Fla. Stat. Ann., 
Art. I, § 1, Fla. Const. (West 1991). 

30a 

To the extent that the Legislature may enact laws 
regulating the electoral process, those laws are valid 
only if they impose no “unreasonable or unnecessary” 
restraints on the right of suffrage: 

The declaration of rights expressly states that 
“all political power is inherent in the people.” 
Article I, Section 1, Florida Constitution. The 
right of the people to select their own officers is 
their sovereign right, and the rule is against 
imposing unnecessary and unreasonable 
[restraints on that right]. . . . Unreasonable or 

unnecessary restraints on the elective process 
are prohibited. 

Treiman v. Malmquist, 342 So. 2d 972, 975 (Fla. 1977) 
(emphasis added). 

50 Because election laws are intended 
to facilitate the right of suffrage, such laws must be 
liberally construed in favor of the citizens’ right to vote: 

Generally, the courts, in construing statutes 
relating to elections, hold that the same should 
receive a liberal construction in favor of the 
citizen whose right to vote they tend to restrict 
and in so doing to prevent disfranchisement of 
legal voters and the intention of the voters 
should prevail when counting ballots . . . . It is 

the intention of the law to obtain an honest 
expression of the will or desire of the voter. 

50 See also Pasco v. Heggen, 314 So. 2d 1, 3 (Fla. 1975) (“We 
have also stated that only unreasonable or unnecessary restraints 
on the elective process are prohibited.”). 

31a 

State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 
1940). 

51 Courts must not lose sight of the fundamental 
purpose of election laws: The laws are intended to 
facilitate and safeguard the right of each voter to express 
his or her will in the context of our representative 
democracy. 

52 Technical statutory requirements must not 
be exalted over the substance of this right. 

53 

Based on the foregoing, we conclude that the 
authority of the Florida Secretary of State to ignore 
amended returns submitted by a County Canvassing 
Board may be lawfully exercised only under limited 
circumstances as we set forth in this opinion. The clear 
import of the penalty provision of section 102.112 is to 
deter Boards from engaging in dilatory conduct contrary 
to statutory authority that results in the late certification 
of a county’s returns. This deterrent purpose is achieved 
by the fines in section 102.112, which are substantial 
and personal and are levied on each member of a Board. 
The alternative penalty, i.e., ignoring the county’s 
returns, punishes not the Board members themselves but 

51 See also State ex rel. Whitley v. Rinehart, 192 So. 819, 823 
(Fla. 1939) (“Election laws should be construed liberally in favor 
of the right to vote . . . .”). 

52 See, e.g., State ex rel.Landis v. Dyer, 148 So. 201, 203 (Fla. 
1933) (“The right to vote, though not inherent, is a constitutional 
right in this state. The Legislature may impose reasonable rules 
and regulations for its governance, but it cannot under the guise of 
such regulation unduly subvest or restrain this right.”). 

53 See, e.g., Boardman v. Esteva, 323 So. 2d 259, 269 (Fla. 1975) 
(“In summary, we hold that the primary consideration in an 
election contest is whether the will of the people has been 
effected.”). 

32a 

rather the county’s electors, for it in effect dis- 
enfranchises them. 

54 

Ignoring the county’s returns is a drastic measure 
and is appropriate only if the returns are submitted to the 
Department so late that their inclusion will compromise 
the integrity of the electoral process in either of two 
ways: (1) by precluding a candidate, elector, or taxpayer 
from contesting the certification of an election pursuant 
to section 102.168; or (2) by precluding Florida voters 
from participating fully in the federal electoral process. 

55 

In either case, the Secretary must explain to the Board 
her reason for ignoring the returns and her action must 
be adequately supported by the law. To disenfranchise 
electors in an effort to deter Board members, as the 
Secretary in the present case proposes, is unreasonable, 
unnecessary, and violates longstanding law. 

Allowing the manual recounts to proceed in an 
expeditious manner, rather than imposing an arbitrary 
seven-day deadline, is consistent not only with the 
statutory scheme but with prior United States Supreme 
Court pronouncements: 

Indiana has found, along with many other 
States, that one procedure necessary to guard 
against irregularity and error in the tabulation of 
votes is the availability of a recount. Despite 
the fact that a certificate of election may be 
issued to the leading candidate wi thin 30 days 

54 Cf. Boardman v. Esteva, 323 So. 2d 259, 268-69 (Fla. 1975) 
(“When the voters have done all that the statute has required them 
to do, they will not be disfranchised solely on the basis of the 
failure of the election officials to observe directory statutory 
instructions.”). 

55 See 3 U.S.C. §§ 1-10 (1994). 

33a 

after the election, the results are not final if a 
candidate's option to compel a recount is 
exercised. A recount is an integral part of the 
Indiana electoral process and is within the ambit 
of the broad powers delegated to the States by 
Art. I, s 4. 

Roudebush v. Hartke, 405 U.S. 15, 25 (1972)(footnotes 
omitted). 

In addition, an accurate vote count is one of the 
essential foundations of our democracy. The words of 
the Supreme Court of Illinois are particularly apt in this 
case: 

The purpose of our election laws is to obtain a 
correct expression of the intent of the voters. 
Our courts have repeatedly held that, where the 
intention of the voter can be ascertained with 
reasonable certainty from his ballot, that 
intention will be given effect even though the 
ballot is not strictly in conformity with the law. . 

. . The legislature authorized the use of 
electronic tabulating equipment to expedite the 
tabulating process and to eliminate the 
possibility of human error in the counting 
process, not to create a technical obstruction 
which defeats the rights of qualified voters. 
This court should not, under the appearance of 
enforcing the election laws, defeat the very 
object which those law are intended to achieve. 
To invalidate a ballot which clearly reflects the 
voter's intent, simply because a machine cannot 
read it, would subordinate substance to form 
and promote the means at the expense of the 
end. 

The voters here did everything which the 
Election Code requires when they punched the 
appropriate chad with the stylus. These voters 

34a 

should not be disfranchised where their intent 
may be ascertained with reasonable certainty, 
simply because the chad they punched did not 
completely dislodge from the ballot. Such a 
failure may be attributable to the fault of the 
election authorities, for failing to provide 
properly perforated paper, or it may be the result 
of the voter's disability or inadvertence. 
Whatever the reason, where the intention of the 
voter can be fairly and satisfactorily ascertained, 
that intention should be given effect. 

Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990) 
(citations omitted). 

IX. THE PRESENT CASE 

The trial court below properly concluded that the 
County Canvassing Boards are required to submit their 
returns to the Department by 5:00 p.m. of the seventh 
day following the election and that the Department is not 
required to ignore the amended returns but rather may 
count them. The court, however, erred in holding that 
the Secretary acted within her discretion in prematurely 
rejecting any amended returns that would be the result of 
ongoing manual recounts. The Secretary’s rationale for 
rejecting the Board’s returns was as follows: 

The Board has not alleged any facts or 
circumstances that suggest the existence of 
voter fraud. The Board has not alleged any 
facts or circumstances that suggest that there has 
been substantial noncompliance with the state’s 
statutory election procedures, coupled with 
reasonable doubt as to whether the certified 
results expressed the will of the voters. The 
Board has not alleged any facts or 
circumstances that suggest that Palm Beach 
County has been unable to comply with its 
election duties due to an act of God, or other 

35a 

extenuating circumstances that are beyond its 
control. The Board has alleged the possibility 
that the results of the manual recount could 
affect the outcome of the election if certain 
results obtain. However, absent an assertion 
that there has been substantial noncompliance 
with the law, I do not believe that the possibility 
of affecting the outcome of the election is 
enough to justify ignoring the statutory 
deadline. Furthermore, I find that the facts and 
circumstances alleged, standing alone, do not 
rise to the level of extenuating circumstances 
that justify a decision on my part to ignore the 
statutory deadline imposed by the Florida 
Legislature. 

Letter from Katherine Harris to Palm Beach Canvassing 
Board (Nov. 15, 2000)(emphasis added). 

We conclude that, consistent with the Florida 
election scheme, the Secretary may reject a Board’s 
amended returns only if the returns are submitted so late 
that their inclusion will preclude a candidate from 
contesting the certification or preclude Florida’s voters 
from participating fully in the federal electoral process. 
The Secretary in the present case has made no claim that 
either of these conditions apply at this point in time. 

The above analysis is consistent with State ex rel. 
Chappell v. Martinez, 536 So. 2d 1007 (Fla. 1988), 
wherein the Court addressed a comparable recount issue. 
There, the total votes cast for each of two candidates for 
a seat in the United State House of Representatives were 
separated by less than one-half of one percent; the 
county conducted a mandatory recount; the Board’s 
certification of results was not received by the 
Department until two days after the deadline, although 
the Board had telephoned the results to the Department 
prior to the deadline; and the unsuccessful candidate 
sued to prevent the Department from counting the late 

36a 

votes. The Court concluded that the will of the electors 
supersedes any technical statutory requirements: 

[T]he electorate’s effecting its will through its 
balloting, not the hypertechnical compliance 
with statutes, is the object of holding an 
election. “There is no magic in the statutory 
requirements. If they are complied with to the 
extent that the duly responsible election officials 
can ascertain that the electors whose votes are 
being canvassed are qualified and registered to 
vote, and that they do so in a proper manner, 
then who can be heard to complain the statute 
has not been literally and absolutely complied 
with?” 

Chappell, 536 So. 2d at 1008-09 (quoting Boardman v. 
Esteva, 323 So. 2d 259, 267 (Fla. 1975)). 

X. CONCLUSION 

According to the legislative intent evinced in the 
Florida Election Code, the permissive language of 
section 102.112 supersedes the mandatory language of 
section 102.111. 

The statutory fines set forth in section 
102.112 offer strong incentive to County Canvassing 
Boards to submit their returns in a timely fashion. 
However, when a Board certifies its returns after the 
seven-day period because the Board is acting in 
conformity with other provisions of the Code or with 
administrative rules or for other good cause, the 
Secretary may impose no fines. It is unlikely that the 
Legislature would have intended to punish a Board for 
complying with the dictates of the Code or some other 
law. 

Because the right to vote is the pre-eminent right in 
the Declaration of Rights of the Florida Constitution, the 
circumstances under which the Secretary may exercise 
her authority to ignore a county’s returns filed after the 

37a 

initial statutory date are limited. The Secretary may 
ignore such returns only if their inclusion will 
compromise the integrity of the electoral process in 
either of two ways: (1) by precluding a candidate, 
elector, or taxpayer from contesting the certification of 
election pursuant to section 102.168; or (2) by pre- 
cluding Florida voters from participating fully in the 
federal electoral process. In either such case, this drastic 
penalty must be both reasonable and necessary. But to 
allow the Secretary to summarily disenfranchise 
innocent electors in an effort to punish dilatory Board 
members, as she proposes in the present case, misses the 
constitutional mark. The constitution eschews punish- 
ment by proxy. 

As explained above, the Florida Election Code must 
be construed as a whole. Section 102.166 governs 
manual recounts and appears to conflict with sections 
102.111 and 102.112, which set a seven day deadline by 
which County Boards must submit their returns. 
Further, section 102.111, which provides that the 
Secretary “shall” ignore late returns, conflicts with 
section 102.112, which provides that the Secretary 
“may” ignore late returns. In the present case, we have 
used traditional rules of statutory construction to resolve 
these ambiguities to the extent necessary to address the 
issues presented here. We decline to rule more 
expansively, for to do so would result in this Court 
substantially rewriting the Code. We leave that matter 
to the sound discretion of the body best equipped to 
address it -- the Legislature. 

Because of the unique circumstances and 
extraordinary importance of the present case, wherein 
the Florida Attorney General and the Florida Secretary 
of State have issued conflicting advisory opinions 
concerning the propriety of conducting manual recounts, 
and because of our reluctance to rewrite the Florida 
Election Code, we conclude that we must invoke the 
equitable powers of this Court to fashion a remedy that 

38a 

will allow a fair and expeditious resolution of the 
questions presented here. 

56 

Accordingly, in order to allow maximum time for 
contests pursuant to section 102.168, amended 
certifications must be filed with the Elections Canvas- 
sing Commission by 5 p.m. on Sunday, November 26, 
2000 and the Secretary of State and the Elections 
Canvassing Commission shall accept any such amended 
certifications received by 5 p.m. on Sunday, November 
26, 2000, provided that the office of the Secretary of 
State, Division of Elections is open in order to allow 
receipt thereof. If the office is not open for this special 
purpose on Sunday, November 26, 2000, then any 
amended certifications shall be accepted until 9 a.m. on 
Monday, November 27, 2000. The stay order entered on 
November 17, 2000, by this Court shall remain in effect 
until the expiration of the time for accepting amended 
certifications set forth in this opinion. The certificates 
made and signed by the Elections Canvassing Commis- 
sion pursuant to section 102.121 shall include the 
amended returns accepted through the dates set forth in 
this opinion. 

It is so ordered. No motion for rehearing will be 
allowed. 

WELLS, C.J., and SHAW, HARDING, ANSTEAD, 
PARIENTE, LEWIS and QUINCE, JJ., concur. 

* * * * * 

56 At oral argument, we inquired as to whether the presidential 
candidates were interested in our consideration of a reopening of 
the opportunity to request recounts in any additional counties. 
Neither candidate requested such an opportunity. 

39a 

APPENDIX B 

SUPREME COURT OF FLORIDA 

Friday, November 17, 2000 – CORRECTED ORDER 

Case Nos.: SC00-2346, SC00-2348 & SC00-2349 

PALM BEACH COUNTY CANVASSING BOARD, 

Petitioner, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Respondents. 

VOLUSIA COUNTY CANVASSING BOARD, ET AL., 

Appellants, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Appellees. 

FLORIDA DEMOCRATIC PARTY, 

Appellant, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Appellees. 

STAY ORDER 

In order to maintain the status quo, the Court, on its 
own motion, enjoins the Respondent, Secretary of State 
and Respondent, the Elections Canvassing Commission 

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from certifying the results of the November 7, 2000, 
presidential election, until further order of this Court. It 
is NOT the intent of this Order to stop the counting and 
conveying to the Secretary of State the results of 
absentee ballots or any other ballots. 

WELLS, C.J., SHAW, HARDING, ANSTEAD, PAR- 
IENTE, LEWIS and QUINCE, JJ., concur. 

A True Copy 

Test: 

/s/ 

Thomas D. Hall 
Clerk, Supreme Court 

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APPENDIX C 

SUPREME COURT OF FLORIDA 

Thursday, November 16, 2000 

Case No.: SC00-2346 

PALM BEACH COUNTY CANVASSING BOARD, 

Petitioner, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Respondents. 

We enter the present interim order in this matter. 
We have considered the Petition and it appears that the 
relief sought on the question of whether the Canvassing 
Board may conduct a manual recount of the votes cast 
for President and Vice President has been answered in 
the affirmative by the Circuit Courts of Leon and Palm 
Beach County. At present, this is binding legal authority 
on this issue and there is no legal impediment to the 
recounts continuing. Thus, Petitioners are authorized to 
proceed with the manual recount. 

WELLS, C.J., SHAW, HARDING, ANSTEAD, PAR- 
IENTE, LEWIS and QUINCE, JJ., concur. 

A True Copy 

Test: 

/s/ 

Thomas D. Hall 
Clerk, Supreme Court 

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APPENDIX D 

IN THE CIRCUIT COURT OF 
THE SECOND JUDICIAL CIRCUIT 
IN AND FOR LEON COUNTY, FLORIDA 

MICHAEL McDERMOTT, ANN 
McFALL and PATRICIA NORTHEY, as 
the CANVASSING BOARD FOR 
VOLUSIA COUNTY, FLORIDA, 
CANVASSING BOARD FOR PALM 
BEACH COUNTY, FLORIDA, 
DEMOCRATIC PARTY OF FLORIDA, 
and VICE PRESIDENT ALBERT GORE 

Plaintiffs, CASE NO: 00-2700 

vs. 

HONORABLE KATHERINE HARRIS, 
as Secretary of State, State of Florida, 
and HONORABLE KATHERINE 
HARRIS, HONORABLE BOB 
CRAWFORD and HONORABLE 
LAURENCE C. ROBERTS, as the 
Elections Canvassing Commission, 
GOVERNOR GEORGE W. BUSH, and 
MATT BUTLER, 

Defendants. 

___________________________/ 

ORDER DENYING EMERGENCY MOTION TO 
COMPEL COMPLIANCE WITH AND FOR 
ENFORCEMENT OF INJUNCTION 

The limited issue before me on this Motion is 
whether the Secretary of State has violated my Order of 
November 14, 2000. The Plaintiffs assert that she has 

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acted arbitrarily in deciding to ignore amended returns 
from counties conducting manual recounts. I disagree. 

As noted in my previous Order, Florida law grants 
to the Secretary, as the Chief Elections Officer, broad 
discretionary authority to accept or reject late filed 
returns. The purpose and intent of my Order was to 
insure that she in fact properly exercised her discretion, 
rather than automatically reject returns that came in after 
the statutory deadline. 

On the limited evidence presented, it appears that 
the Secretary has exercised her reasoned judgment to 
determine what relevant factors and criteria should be 
considered, applied them to the facts and circumstances 
pertinent to the individual counties involved, and made 
her decision. My Order requires nothing more. 

Accordingly, it is 

ORDERED AND ADJUDGED that the Motion is 
hereby denied. 

DONE AND ORDERED in Chambers at 
Tallahassee, Leon County, Florida, this 17th day of 
November, 2000. 

/s/ 
TERRY P. LEWIS, Circuit Judge 

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APPENDIX E 

IN THE CIRCUIT COURT OF 
THE SECOND JUDICIAL CIRCUIT 
IN AND FOR LEON COUNTY, FLORIDA 

MICHAEL McDERMOTT, ANN 
McFALL and PATRICIA NORTHEY, 
as the CANVASSING BOARD FOR 
VOLUSIA COUNTY, FLORIDA, 
CANVASSING BOARD FOR PALM 
BEACH COUNTY, FLORIDA, 
DEMOCRATIC PARTY OF FLORIDA, 
and VICE PRESIDENT ALBERT 
GORE 

Plaintiffs, CASE NO: 00-2700 

vs. 

HONORABLE KATHERINE HARRIS, 
as Secretary of State, State of Florida, 
and HONORABLE KATHERINE 
HARRIS, HONORABLE BOB 
CRAWFORD and HONORABLE 
LAURENCE C. ROBERTS, as the 
Elections Canvassing Commission, 
GOVERNOR GEORGE W. BUSH, and 
MATT BUTLER, 

Defendants. 

___________________________/ 

ORDER GRANTING IN PART AND DENYING IN 
PART MOTION FOR TEMPORARY 
INJUNCTION 

This declaratory judgment action is before me on 
the Motion of the Canvassing Board for Volusia County 
for a temporary injunction against the Secretary of State 

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and the Elections Canvassing Commission. By Motion 
and agreement of the parties, the Florida Democratic 
Party, Candidate Al Gore, and the Canvassing Board of 
Palm Beach County have intervened as Party Plaintiffs, 
and Candidate George W. Bush and Elector Matt Butler 
have intervened as Party Defendants. 

The heart of the issue raised by the Motion is this: 
Section 102.166, Florida Statutes, contemplates that 
upon request a county canvassing board may authorize a 
manual recount of votes cast in an election. Both 
Volusia and Palm Beach Counties have so authorized, 
and are in the process of conducting, a manual recount. 
The Boards are concerned that the manual recounts may 
not be completed by 5:00 p.m. today, November 14, 
2000, which is the deadline imposed upon them by 
Section 102.112, Florida Statutes, to certify and report 
the election returns to the Secretary of State. This 
Section provides that if the returns are not received by 
the deadline, such returns may be ignored by the 
Secretary in her certification of results statewide. 

The Plaintiffs insist that the Secretary of State must 
consider the certified results from Volusia and Palm 
Beach Counties, even if they are filed late, if they are 
still engaged in the manual recount of the votes. The 
Secretary of State insists that, absent an Act of God such 
as a hurricane, any returns not received by the statutory 
deadline will not be counted in the statewide tabulations 
and certification of the election results. For the reasons 
set forth below, I find that the County Canvassing 
Boards must certify and file what election returns they 
have by the statutory deadline of 5:00 p.m. of 
November 14, 2000, with due notification to the 
Secretary of State of any pending manual recount, and 
may thereafter file supplemental or corrective returns. 
The Secretary of State may ignore such late filed 
returns, but may not do so arbitrarily, rather, only by the 
proper exercise of discretion after consideration of all 
appropriate facts and circumstances. 

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The Secretary of State takes the position that the law 
requires the County Canvassing Boards to certify and 
report the results of elections in their counties no later 
than 5:00 p.m. November 14, 2000, that there are no 
exceptions to this mandate, and that the Secretary is 
likewise required by law to ignore any untimely 
received returns unless the untimeliness is caused by a 
hurricane or other Act of God.1 I give great deference to 
the interpretation by the Secretary of the election laws, 
and I agree that the Canvassing Boards must file their 
returns by 5:00 p.m. today. I disagree, however, that the 
Secretary is required to ignore any late filed returns 
absent an Act of God. There are several reasons for my 
conclusion: 

1. A reading of the entire Election Code suggests a 
legislative intent to balance the desire for accuracy with 
the desire for finality. By concentrating on the deadline 
imposed by Section 102.112, Florida Statutes, the 
Secretary has come down hard on the side of finality. 
This interpretation ignores, however, Section 102.166, 
Florida Statutes, which gives to the County Canvassing 
Boards the authority to authorize a manual recount. A 
request for such recount may be made within three days 
of the election. If a manual recount of at least three 
precincts and at least one percent (1%) of the total votes 
indicates an error in vote tabulation which could effect 
the outcome of the election, the Canvassing Board shall 
either (a) correct the error and recount the remaining 
precincts with the vote tabulation system, (b) request the 
Department of State to verify the tabulation software, or 
(3) manually recount all ballots. 

1 The Secretary of State acknowledges that Section 102.112, 
rather than Section 102.111, Florida Statutes, prevails as to the 
question of the whether the Department has any discretion in 
whether to ignore late filed results. 

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Depending on when a request is made and then 
acted upon, it is easy to imagine a situation where a 
manual recount could be lawfully authorized, 
commenced, but not completed within seven days of the 
election. The Secretary of State responds that the 
authority to authorize a manual recount is subject to the 
requirement that such recount be done and the results 
certified no later than the deadline imposed by Section 
102.112, Florida Statutes. This would mean, however, 
that only in sparsely populated counties could a 
Canvassing Board safely exercise what the Legislature 
has clearly intended to be an option where the Board has 
a real question as to the accuracy of a vote. 

2. Section 102.166, Florida Statutes, gives any 
candidate, or qualified elector, the right to protest the 
returns of a County Canvassing Board by filing a sworn 
written protest, and that protest may be filed within five 
(5) days of the election, or any time before the 
Canvassing Board certifies the results, whichever occurs 
later. This suggests that the Canvassing Board might be 
in a position of having to address a protest of its returns 
the day before, or hours before, it was to certify the 
results pursuant to the deadline in Section 102.112, 
Florida Statutes, thus making it impossible to correct 
any error before the deadline. It is unlikely that the 
Legislature would give the right to protest returns, but 
make it meaningless because it could not be acted upon 
in time. 

3. Section 102.168 provides for the contesting of an 
election by an unsuccessful candidate or a qualified 
elector, by filing a complaint in Circuit Court within ten 
(10) days after the Canvassing Board certifies the result 
of an election or within five (5) days after the 
Canvassing Board certifies the results of an election 
following a protest pursuant to Section 102.166(1), 
Florida Statutes, whichever occurs later. This provision 
suggests that certifications of the results in an election 

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might occur later than usual if there is a protest of the 
returns. 

4. The Secretary of State acknowledges that, by 
consent decree with the Federal Government, the 
absentee ballots of overseas electors must be counted if 
received up to ten (10) days after the election (three days 
beyond the deadline imposed by Section 102.112, 
Florida Statutes). The County Canvassing Board can 
not report final returns, nor can the Election Canvassing 
Commission determine a winner of the election until all 
of these overseas absentee ballots are counted. The 
Secretary explains this anomaly by inferring a 
requirement to do one certification of results seven (7) 
days after the election and a “supplemental certification” 
ten (10) days after the election. There is, however, no 
statutory provision that provides for such a supplemental 
certification. Instead, Section 102.111, Florida Statutes, 
which deals specifically with the duty of the Elections 
Canvassing Commission, requires the Commission to, 
“as soon as the official results are compiled from all 
Counties, certify the returns of the election and 
determine and declare who has been selected for each 
office. . . .” 

5. As noted earlier, the Secretary acknowledges that 
Section 102.112, Florida Statutes, uses the discretionary 
term “may”, instead of the mandatory term “shall” as to 
whether late returns are to be ignored by the Secretary in 
certifying the results of the election. That the Secretary 
may ignore late filed returns necessarily means that the 
Secretary does not have to ignore such returns. It is, as 
the Secretary acknowledges, within her discretion. 

To determine ahead of time that such returns will be 
ignored, however, unless caused by some Act of God, is 
not the exercise of discretion. It is the abdication of that 
discretion. An Act of God has long been considered to 
excuse even the most mandatory of requirements. 
Rather, the exercise of discretion, by its nature, 

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contemplates a decision based upon a weighing and 
consideration of all attendant facts and circumstances. 

The Florida Supreme Court has stated that 
“substantial compliance” is sufficient to comply with 
such mandatory filing deadlines. See Chappel v. 
Martinez, 536 So. 2d 1007 (Fla. 1988). If the returns are 
received from a County at 5:05 p.m. on November 14, 
2000, should the results be ignored? What about fifteen 
minutes? An hour? What if there was an electrical 
power outage? Some other malfunction of the 
transmitting equipment? More particularly related to 
this case, when was the request for recount made? What 
were the reasons given? When did the Canvassing 
Board decide to do a manual recount? What was the 
basis for determination that such a recount was the 
appropriate action? How late were the results? 

Obviously, the list of scenarios is almost endless and 
the questions that would need to be asked in properly 
exercising discretion as to whether to ignore or not 
ignore late filed returns are numerous. The Secretary 
may, and should, consider all of the facts and 
circumstances. 

The County Canvassing Boards are, indeed, 
mandated to certify and file their returns with the 
Secretary of State by 5:00 p.m. today, November 14, 
2000. There is nothing, however, to prevent the County 
Canvassing Boards from filing with the Secretary of 
State further returns after completing a manual recount. 
It is then up to the Secretary of State, as the Chief 
Election Officer, to determine whether any such 
corrective or supplemental returns filed after 5:00 p.m. 
today, are to be ignored. Just as the County Canvassing 
Boards have the authority to exercise discretion in 
determining whether a manual recount should be done, 
the Secretary of State has the authority to exercise her 
discretion in reviewing that decision, considering all 
attendant facts and circumstances, and decide whether to 

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include or to ignore the late filed returns in certifying the 
election results and declaring the winner. 

Just as the Secretary cannot decide ahead of time 
what late returns should or should not be ignored, it 
would not be proper for me to do so by injunction. I can 
lawfully direct the Secretary to properly exercise her 
discretion in making a decision on the returns, but I 
cannot enjoin the Secretary to make a particular 
decision, nor can I rewrite the Statute which, by its plain 
meaning, mandates the filing of returns by the 
Canvassing Boards by 5:00 p.m. on November 14, 2000. 

I also note that although the Canvassing Boards 
cannot properly contest an election, an unsuccessful 
Candidate, or any qualified Elector, may file, pursuant to 
Section 102.168, Florida Statutes, a complaint in Circuit 
Court contesting the election results. One of the specific 
itemized grounds for such a challenge is the “rejection 
of a number of legal votes sufficient to change or place 
in doubt the result of the election.” 

Accordingly, it is 

ORDERED AND ADJUDGED that the Secretary 
of State is directed to withhold determination as to 
whether or not to ignore late filed returns, if any, from 
Plaintiff Canvassing Boards, until due consideration of 
all relevant facts and circumstances consistent with the 
sound exercise of discretion. In all other respects, the 
Motion for Temporary Injunction is denied. 

DONE AND ORDERED in Chambers at 
Tallahassee, Leon County, Florida, this 14th day of 
November, 2000. 

/s/ 
TERRY P. LEWIS, Circuit Judge 

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APPENDIX F 

FLORIDA STATUTES 

TITLE 9—ELECTORS AND ELECTIONS 

CHAPTER 102—CONDUCTING ELECTIONS 

AND ASCERTAINING THE RESULTS 

* * * * * 

102.111 Elections Canvassing Commission. 

(1) Immediately after certification of any election 
by the county canvassing board, the results shall be 
forwarded to the Department of State concerning the 
election of any federal or state officer. The Governor, 
the Secretary of State, and the Director of the Division 
of Elections shall be the Elections Canvassing 
Commission. The Elections Canvassing Commission 
shall, as soon as the official results are compiled from all 
counties, certify the returns of the election and 
determine and declare who has been elected for each 
office. In the event that any member of the Elections 
Canvassing Commission is unavailable to certify the 
returns of any election, such member shall be replaced 
by a substitute member of the Cabinet as determined by 
the Director of the Division of Elections. If the county 
returns are not received by the Department of State by 5 

p.m. of the seventh day following an election, all 
missing counties shall be ignored, and the results shown 
by the returns on file shall be certified. 

(2) The Division of Elections shall provide the staff 
services required by the Elections Canvassing 
Commission. 

102.112 Deadline for submission of county returns 
to the Department of State; penalties. 

(1) The county canvassing board or a majority 
thereof shall file the county returns for the election of a 

52a 

federal or state officer with the Department of State 
immediately after certification of the election results. 
Returns must be filed by 5 p.m. on the 7th day following 
the first primary and general election and by 3 p.m. on 
the 3rd day following the second primary. If the returns 
are not received by the department by the time specified, 
such returns may be ignored and the results on file at 
that time may be certified by the department. 

(2) The department shall fine each board member 
$200 for each day such returns are late, the fine to be 
paid only from the board member's personal funds. Such 
fines shall be deposited into the 1 Election Campaign 
Financing Trust Fund, created by § 106.32. 

(3) Members of the county canvassing board may 
appeal such fines to the Florida Elections Commission, 
which shall adopt rules for such appeals. 

* * * * * 

102.141 County canvassing board; duties. 

* * * * * 

(4) If the returns for any office reflect that a 
candidate was defeated or eliminated by one-half of a 
percent or less of the votes cast for such office, that a 
candidate for retention to a judicial office was retained 
or not retained by one-half of a percent or less of the 
votes cast on the question of retention, or that a measure 
appearing on the ballot was approved or rejected by one- 
half of a percent or less of the votes cast on such 
measure, the board responsible for certifying the results 

1 The trust fund expired, effective November 4, 1996, by 
operation of § 19(f), Art. III of the State Constitution. 

53a 

of the vote on such race or measure shall order a recount 
of the votes cast with respect to such office or measure. 
A recount need not be ordered with respect to the returns 
for any office, however, if the candidate or candidates 
defeated or eliminated from contention for such office 
by one-half of a percent or less of the votes cast for such 
office request in writing that a recount not be made. 
Each canvassing board responsible for conducting a 
recount shall examine the counters on the machines or 
the tabulation of the ballots cast in each precinct in 
which the office or issue appeared on the ballot and 
determine whether the returns correctly reflect the votes 
cast. If there is a discrepancy between the returns and 
the counters of the machines or the tabulation of the 
ballots cast, the counters of such machines or the 
tabulation of the ballots cast shall be presumed correct 
and such votes shall be canvassed accordingly. 

* * * * * 

102.166 Protest of election returns; procedure. 

(1) Any candidate for nomination or election, or 
any elector qualified to vote in the election related to 
such candidacy, shall have the right to protest the returns 
of the election as being erroneous by filing with the 
appropriate canvassing board a sworn, written protest. 

(2) Such protest shall be filed with the canvassing 
board prior to the time the canvassing board certifies the 
results for the office being protested or within 5 days 
after midnight of the date the election is held, whichever 
occurs later. 

(3) Before canvassing the returns of the election, 
the canvassing board shall: 

(a) When paper ballots are used, examine the 
tabulation of the paper ballots cast. 

54a 

(b) When voting machines are used, examine the 
counters on the machines of nonprinter machines or the 
printer-pac on printer machines. If there is a discrepancy 
between the returns and the counters of the machines or 
the printer-pac, the counters of such machines or the 
printer-pac shall be presumed correct. 

(c) When electronic or electromechanical 
equipment is used, the canvassing board shall examine 
precinct records and election returns. If there is a clerical 
error, such error shall be corrected by the county 
canvassing board. If there is a discrepancy which could 
affect the outcome of an election, the canvassing board 
may recount the ballots on the automatic tabulating 
equipment. 

(4)(a) Any candidate whose name appeared on the 
ballot, any political committee that supports or opposes 
an issue which appeared on the ballot, or any political 
party whose candidates' names appeared on the ballot 
may file a written request with the county canvassing 
board for a manual recount. The written request shall 
contain a statement of the reason the manual recount is 
being requested. 

(b) Such request must be filed with the canvassing 
board prior to the time the canvassing board certifies the 
results for the office being protested or within 72 hours 
after midnight of the date the election was held, 
whichever occurs later. 

(c) The county canvassing board may authorize a 
manual recount. If a manual recount is authorized, the 
county canvassing board shall make a reasonable effort 
to notify each candidate whose race is being recounted 
of the time and place of such recount. 

(d) The manual recount must include at least three 
precincts and at least 1 percent of the total votes cast for 
such candidate or issue. In the event there are less than 

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three precincts involved in the election, all precincts 
shall be counted. The person who requested the recount 
shall choose three precincts to be recounted, and, if other 
precincts are recounted, the county canvassing board 
shall select the additional precincts. 

(5) If the manual recount indicates an error in the 
vote tabulation which could affect the outcome of the 
election, the county canvassing board shall: 

(a) Correct the error and recount the remaining 
precincts with the vote tabulation system; 

(b) Request the Department of State to verify the 
tabulation software; or 

(c) Manually recount all ballots. 

(6) Any manual recount shall be open to the public. 

(7) Procedures for a manual recount are as follows: 

(a) The county canvassing board shall appoint as 
many counting teams of at least two electors as is 
necessary to manually recount the ballots. A counting 
team must have, when possible, members of at least two 
political parties. A candidate involved in the race shall 
not be a member of the counting team. 

(b) If a counting team is unable to determine a 
voter's intent in casting a ballot, the ballot shall be 
presented to the county canvassing board for it to 
determine the voter's intent. 

(8) If the county canvassing board determines the 
need to verify the tabulation software, the county 
canvassing board shall request in writing that the 
Department of State verify the software. 

(9) When the Department of State verifies such 
software, the department shall: 

56a 

(a) Compare the software used to tabulate the votes 
with the software filed with the Department of State 
pursuant to § 101.5607; and 

(b) Check the election parameters. 

(10) The Department of State shall respond to the 
county canvassing board within 3 working days. 

* * * * * 

102.168 Contest of election. 

(1) Except as provided in § 102.171, the 
certification of election or nomination of any person to 
office, or of the result on any question submitted by 
referendum, may be contested in the circuit court by any 
unsuccessful candidate for such office or nomination 
thereto or by any elector qualified to vote in the election 
related to such candidacy, or by any taxpayer, 
respectively. 

(2) Such contestant shall file a complaint, together 
with the fees prescribed in chapter 28, with the clerk of 
the circuit court within 10 days after midnight of the 
date the last county canvassing board empowered to 
canvass the returns certifies the results of the election 
being contested or within 5 days after midnight of the 
date the last county canvassing board empowered to 
canvass the returns certifies the results of that particular 
election following a protest pursuant to §102.166(1), 
whichever occurs later. 

(3) The complaint shall set forth the grounds on 
which the contestant intends to establish his or her right 
to such office or set aside the result of the election on a 
submitted referendum. The grounds for contesting an 
election under this section are: 

(a) Misconduct, fraud, or corruption on the part of 
any election official or any member of the canvassing 

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board sufficient to change or place in doubt the result of 
the election. 

(b) Ineligibility of the successful candidate for the 
nomination or office in dispute. 

(c) Receipt of a number of illegal votes or rejection 
of a number of legal votes sufficient to change or place 
in doubt the result of the election. 

(d) Proof that any elector, election official, or 
canvassing board member was given or offered a bribe 
or reward in money, property, or any other thing of 
value for the purpose of procuring the successful 
candidate's nomination or election or determining the 
result on any question submitted by referendum. 

(e) Any other cause or allegation which, if 
sustained, would show that a person other than the 
successful candidate was the person duly nominated or 
elected to the office in question or that the outcome of 
the election on a question submitted by referendum was 
contrary to the result declared by the canvassing board 
or election board. 

(4) The canvassing board or election board shall be 
the proper party defendant, and the successful candidate 
shall be an indispensable party to any action brought to 
contest the election or nomination of a candidate. 

(5) A statement of the grounds of contest may not 
be rejected, nor the proceedings dismissed, by the court 
for any want of form if the grounds of contest provided 
in the statement are sufficient to clearly inform the 
defendant of the particular proceeding or cause for 
which the nomination or election is contested. 

(6) A copy of the complaint shall be served upon 
the defendant and any other person named therein in the 
same manner as in other civil cases under the laws of 
this state. Within 10 days after the complaint has been 

58a 

served, the defendant must file an answer admitting or 
denying the allegations on which the contestant relies or 
stating that the defendant has no knowledge or 
information concerning the allegations, which shall be 
deemed a denial of the allegations, and must state any 
other defenses, in law or fact, on which the defendant 
relies. If an answer is not filed within the time 
prescribed, the defendant may not be granted a hearing 
in court to assert any claim or objection that is required 
by this subsection to be stated in an answer. 

(7) Any candidate, qualified elector, or taxpayer 
presenting such a contest to a circuit judge is entitled to 
an immediate hearing. However, the court in its 
discretion may limit the time to be consumed in taking 
testimony, with a view therein to the circumstances of 
the matter and to the proximity of any succeeding 
primary or other election. 

(8) The circuit judge to whom the contest is 
presented may fashion such orders as he or she deems 
necessary to ensure that each allegation in the complaint 
is investigated, examined, or checked, to prevent or 
correct any alleged wrong, and to provide any relief 
appropriate under such circumstances. 

* * * * * 

FLORIDA STATUTES 

TITLE 9—ELECTORS AND ELECTIONS 

CHAPTER 106—CAMPAIGN FINANCING 

* * * * * 

106.23 Powers of the Division of Elections. 

(1) In order to carry out the responsibilities 
prescribed by § 106.22, the Division of Elections is 
empowered to subpoena and bring before its duly 
authorized representatives any person in the state, or any 
person doing business in the state, or any person who 

59a 

has filed or is required to have filed any application, 
document, papers, or other information with an office or 
agency of this state or a political subdivision thereof and 
to require the production of any papers, books, or other 
records relevant to any investigation, including the 
records and accounts of any bank or trust company 
doing business in this state. Duly authorized 
representatives of the division are empowered to 
administer all oaths and affirmations in the manner 
prescribed by law to witnesses who shall appear before 
them concerning any relevant matter. Should any 
witness fail to respond to the lawful subpoena of the 
division or, having responded, fail to answer all lawful 
inquiries or to turn over evidence that has been 
subpoenaed, the division may file a complaint before 
any circuit court of the state setting up such failure on 
the part of the witness. On the filing of such complaint, 
the court shall take jurisdiction of the witness and the 
subject matter of said complaint and shall direct the 
witness to respond to all lawful questions and to produce 
all documentary evidence in the witness's possession 
which is lawfully demanded. The failure of any witness 
to comply with such order of the court shall constitute a 
direct and criminal contempt of court, and the court shall 
punish said witness accordingly. However, the refusal 
by a witness to answer inquiries or turn over evidence 
on the basis that such testimony or material will tend to 
incriminate such witness shall not be deemed refusal to 
comply with the provisions of this chapter. 

(2) The Division of Elections shall provide advisory 
opinions when requested by any supervisor of elections, 
candidate, local officer having election-related duties, 
political party, political committee, committee of 
continuous existence, or other person or organization 
engaged in political activity, relating to any provisions 
or possible violations of Florida election laws with 
respect to actions such supervisor, candidate, local 
officer having election-related duties, political party, 
committee, person, or organization has taken or 

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proposes to take. A written record of all such opinions 
issued by the division, sequentially numbered, dated, 
and indexed by subject matter, shall be retained. A copy 
shall be sent to said person or organization upon request. 
Any such person or organization, acting in good faith 
upon such an advisory opinion, shall not be subject to 
any criminal penalty provided for in this chapter. The 
opinion, until amended or revoked, shall be binding on 
any person or organization who sought the opinion or 
with reference to whom the opinion was sought, unless 
material facts were omitted or misstated in the request 
for the advisory opinion. 

61a 

APPENDIX G 

SUPREME COURT OF FLORIDA 

NOS. SC00-2346, SC00-2348 & SC00-2349 

PALM BEACH COUNTY CANVASSING BOARD, 

Petitioner, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Respondents. 

VOLUSIA COUNTY CANVASSING BOARD, ET AL., 

Appellants, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Appellees. 

FLORIDA DEMOCRATIC PARTY, 

Appellant, 

vs. 

KATHERINE HARRIS, ETC., ET AL. 

Appellees. 

_______________________________________ 

FROM THE CIRCUIT COURT, SECOND 

JUDICIAL CIRCUIT, 

IN AND FOR LEON COUNTY, FLORIDA 

_______________________________________ 

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ANSWER BRIEF OF INTERVENOR / 
RESPONDENT GEORGE W. BUSH 

* * * * * 

[Page 42] 

In the present context, federal law also places 
additional constraints on courts that require them strictly 
to adhere to the legislature’s prescribed manner for 
conducting an election to choose the State’s presidential 
electors. Under 3 U.S.C. §5, a State is required to select 
its electors “by laws enacted prior to” election day. See 
3 U.S.C. §5 (emphasis added). The purpose of the 
statute is to ensure that neither the Legislature, nor the 
Executive, nor the courts can change the applicable 

[Page 43] 

rules once the voters have gone to the polls. Florida 
law on November 7, 2000, unambiguously required 
county canvassing boards to count, and recount if 
necessary, and manually recount if they chose, within 
the time prescribed by law. Under Section 102.112 the 
Secretary of State was given discretion sometimes not to 
ignore late results. But no provision of state law in 
effect prior to the election, however, granted courts 
equitable power to disregard both the deadline and the 
Secretary’s exercise of reasoned discretion. 

15 It would 

15 Indeed, by operation of the Supremacy Clause, Article VI, 
U.S. Constitution, federal law incorporates by reference whatever 
processes a state establishes by law for choosing electors. The 
United States Constitution provides that the legislatures of the 
States will prescribe the manner in which presidential electors are 
chosen, Article II, Section 1 U.S. Constitution and Congress has 
provided in federal law that “[t]he electors of President and Vice 
President shall be appointed, in each State, on the Tuesday next 

[Footnote continued on next page] 

63a 

also violate the United States Constitution for the 
Secretary of State to permit the 3 counties to complete 
its manual recount and certify those results. The 
selective manual recounts authorize 

[Page 44] 

county boards to engage in arbitrary and unequal 
counting of votes, and result in the disparate treatment 
of Florida voters based solely on where within the state 
they happen to reside. 

This scheme, as applied, violates the United States 
Constitution in three respects. First, it dilutes the votes 
of Florida voters, both within and without the counties 
that are manually counted, by counting their votes 
differently based upon where they reside, in violation of 
the Due Process and Equal Protection Clauses of the 
Fourteenth Amendment. See, e.g., O’Brien v. Skinner, 
414 U.S. 524 (1974). Second, because the manual 

[Footnote continued from previous page] 

after the first Monday in November” in an election year. 3 U.S.C. 
§ 1. Congress has further provided that if a State “has failed to 
make a choice on the day prescribed by law,” it falls to the 
legislature of the State to determine how the electors will be 
appointed. 3 U.S.C. § 2. In the present case, the day prescribed by 
law was Tuesday, November 7, and the State of Florida held an 
election on that day subject to the procedures, including reporting 
procedures and deadlines, established by state law. It follows, 
therefore under the relevant federal statutes and the Supremacy 
Clause that all actors at the state level - including judges -- are 
bound to respect the choices made by the Florida legislature as to 
the process of selecting the state’s presidential electors. It would 
therefore violate federal law for the state courts to use equitable 
doctrines to supplement the legislature’s judgment, reflected in the 
statutes of the state, regarding the methods and time limits for 
selecting presidential electors. 

64a 

recount statute prescribes no meaningful standards for 
officials conducting such recounts, it permits the 
invasion of the liberty interest in voting in an arbitrary 
and capricious manner. See, e.g., Roe v. Alabama, 43 
F.3d 574, 580 (11 

th Cir. 1995). Finally, because the 
right to vote directly implicates the right of association 
under the First Amendment, Williams v. Rhodes, 393 
U.S. 23, 30 (1968), it falls squarely within the principle 
that state actors cannot exercise unconstrained discretion 
over the implementation of laws that touch upon First 
Amendment rights. See City of Lakewood v. Plain 
Dealer Publishing, 486 U.S. 750, 763 (1988). For these 
reasons, allowing the manual recounts to proceed would 
violate the United States Constitution. 

65a 

70150315_2.DOC